Annex LA-6 · provisional measures - which is deemed to be an almost essential instrument in the panoply of any judicial process - is intended to preserve, pending the final decision,

Annex LA-6

S. Oda, “Provisional Measures: The Practice of the International Court of Justice” in FIFTY

YEARS OF THE INTERNATIONAL COURT OF JUSTICE (V. Lowe & M. Fitzmaurice eds., 1996)

Fifty years of the International

Court of Justice

Essays in honour cif

:·ou~Y BOA!~ UE ~4:):.,~'l

!vJA;< 0 4 P.EC'O

SIR ROBERT jENNINGS

Edited by

VAUGHAN LOWE University of Cambridge

and

MALGOSIA FITZMAURICE Queen Mary and Wesrfield College

University of London

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Fifty years of the International Court of Justice: essays in honour of Sir Robert Jennings I

edited by Vaughan Lowe and Malgosia Fitzmaurice. p. em.

Includes index. ISBN 0 521 55093 9 (hardback)

1. International Court of Justice. I. Jennings, R. Y. (Robert Yewdall), 1913-. II . Lowe, Vaughan, 1952-. Ill. Fitzmaurice, M.

JX 197! .6.F54 1996 341.5'52-dc20 95-6516 CIP

ISBN 978-0-521-55093-2 hardback ISBN 978-0-521-04880-4 paperback

29

Provisional measures

The practice of the International Court of Justice

Shigeru Oda

Provisional measures - so called in the Statute and the Rules of Court,

but placed under the heading of 'interim protection' in the latter (part III, Section D, sub-section 1) - are called in French 'mesures conservatoires',

which more properly reflects the nature of this institution. The indication of provisional measures - which is deemed to be an almost essential instrument in the panoply of any judicial process - is intended to preserve, pending the final decision, the respective rights of the parties before the Courtc The provision constituting article 41 of the PCIJ's 1920 Statute, which relates to this institution, was inherited by the Statute of the ICJ which provides in article 41 that 'the Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party'. The practice of both the predecessor and present Courts, in relation to this proceeding, is indicated in table 1.

PRACTICE

During the period of the PCIJ, there were six cases in which the Court received requests for the indication of provisional measures. In only two of them were provisional measures indicated by the Court. In the case concerning Denunciation by China of the 1865 Treaty (No.1 in table 1), the Court's Order granting the request of an applicant, Belgium, was, however, withdrawn some weeks later. In the other case, the Electricity Company of Scifia case (No.6), the outbreak of the Second World War disrupted the proceedings and the case itself was discontinued by the applicant, Belgium, after the end of the

This article is taken from a series of lectures given by the author at the Hague Academy of International

Law in July 1993.

541

PROCEDURAL ASPECTS OF THE ICJ

Table 1. Requests for provisional measures

I. Permanent Court of International Justice

No. 1 De.mmcia/ion of the Treaty of 2 November 1865, between China and &lgium

Belgium v. China

26 November 1926 Application 26 November 1926 8 January 1927 15 february 1927 25 May 1929

Request for provisional measures Order (AS), request admitted Order (AS), the previous Order ceased to be operative Order (A IS), removed from the list (withdrawal by the applicant)

No. 2 Factory at Chorzow

Germany v. Poland

8 February 1927 Application 26 july 1927 Judgment (AS), preliminary objections dismissed 15 October 1927 Request for provisional measures 2] November 1927 Order, request rejected 13 September 1928 Judgment (Al7)

No.3 Prince von Pless Administration

Germany v. Poland

18 May 1932 4 February 1933 3 May 1933 11 May 1933 2 December 1933

Application Order (A/B52), preliminary objections joined to the merits Request for provisional measures Order (A/B54), request ceased to have object Order (A/B59), removed from the list (withdrawal by the applicant)

No.4 Legal Status of the South-eastern Territory of Greenland

18 July 1932 18 July 1932

Norway v. Denmark

Application

2 August 1932 3 August 1932 11 May 1933

Request for provisional measures Order (A/B48), cases joined Order (A/B48), request rejected Order (A/BSS), removed from the list (withdrawal by both parties)

No.5 Polish Agrarian Refomr and the German Minority

Germany v. Poland

3July 1933 3July 1933 29 July 1933 2 December 1933

Application (1 July 1933) Request for provisions measures Order (A/B58), request rejected Order (A/B60) , removed &om the list (withdrawal by the a(>plicanr)

542


'fable 1 (cont.)

No.6. Electricity Company of Sofia and Bulgaria

Belgium v. Bulgaria

26 January 1938 Application 4 April1939 Judgment (A/B77), preliminary objections upheld in part 15 October 1939 Request for provisional measures 5 December 1939 Order (A/B79), request admitted 1 December 1945 Discontinuance

II. International Court of Justice

No. 7 Anglo-Iranian Oil Co.

United Kingdom v. Iran

26 May 1951 26 May 1951 5 July 1951 22July 1952

Application Request for provisional measures Order (ICJ Reports, 1951, p. 89), request admitted Judgment, preliminary objections upheld

No. 8 Interhandel case

Switzerland v. United States

2 October 1957 3 October 1957 24 October 1957 21 March 1959

Application Request for provisional measures Order (ICJ Reports, 1957, p. 105), request rejected Judgment, preliminary objections upheld

No. 9A/B Fisheries Jurisdiction

United Kingdom v. Iceland/Germany v. Iceland

14 April 1972 Application 19 July 1972 (UK}; 21 July 1972 (Germany) requests for provisional measures 17 August 1972 Order (ICJ Reports, 1972, pp. 12, 30), requests admitted 25July 1974 Judgment

No. 10A/B Nuclear Tests

Australia v. France/New Zealand v. Fraru:e

9 May 1973 9 May 1973 22June 1973 20 December 1974

Application Requests for provisional measures Orders (ICJ Reports, 1973, pp. 99, 135), requests admitted Judgment (discontinuance)

No. 11 Trial of Pakistani Prisoners of War

Pakistan v. India

11 May 1973 11 May 1973 13July 1973 15 December 1973

Application Request for provisional measures Order (ICJ Reports , 1973, p. 328) , request lapsed Order, removed from the list (discontinuance by the applicant)

543


Table 1 (cont.)

No. 12 Aegean Sea Continerrtal Shtlf

Greece v. Turkey

10 August 1976 10 August 1976 11 September 1976 19 December 1978

Application Request for provisional measures Order (ICJ Reports, 1976, p. 3), request rejected Judgment, preliminary objections upheld

No. 13 United States Diplomatic and Consular Staff in Tehran

United States v. Islamic Republic of Iran

29 November 1979 Application 29 November 1979 15 December 1979 24 May 1980

Request for provisional measures Order (I CJ Reports, 1979, p. 7), request admitted Judgment

No. 14 Frontier Dispute

Burkina Paso/Republic of Mali (ad hoc Chamber case)

20 October 1983 Filing of joint letter of 14 October 1983 2 January 1986 Request for provisional measures 10 January 1986 Order (ICJ Reports, 1986, p. 3), request admitted 22 December 1986 Judgment

No. 15 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United Stales of America)

Nicaragua v. United States

Application 9 April 1984 9 April1984 10 May 1984 27 June 1986 26 September 1991

Request for provisional measures Order (ICJ Reports, 1984, p. 169), request admitted Judgment Order, removed from the list

No. 16 Border and Transborder Armed Actions (Nicaragua v. Hond11ras)

Nicaragua v. Honduras

28 July 1986 Application 21 March 1988 31 March 1988 27 May 1992

Request for provisional measures Order (ICJ Reports, 1988, p. 9), request withdrawn Order, removed from the list (discontinuance by the applicant)

No. 17 Arbitral Award of 31 july 1989

Guinea-Bissau v. Senegal

3 August 1989 Application 18 January 1990 Request for provisional measures 2 March 1990 Order (ICJ Reports, 1990, p. 64) , request rejected 12 November 1991 Judgment

544


Table 1 (cont.)

No. 18 Passage through the Great Belt

Finland v. Denmark

17May1991 23 May 1991 29 July 1991

Application Request for provisional measures Order (ICJ Reports, 1991, p. 12), request rejected

10 September 1992 Order, removed from the list (discontinuance by the parties)

No. 19A/B Questions of Interpretation and Application ofthe 1971 Montreal Convention arising from the Aerial Incident at Lockerbie

Libyan Arab Jamahiriya v. United Kingdom/Libyan Arab Jamahiriya v. United States

3 March 1992 Application 3 March 1992 Requests for provisional measures 14 April1992 Order (ICJ Reports, 1992, pp. 3, 114), requests rejected

pending

No. 20 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)

Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)

20 March 1993 Application 20 March 1993 Request for provisional measures 8 April 1993 Order (ICJ Reports, 1993, p. 3), request admitted 27 July 1993 Further request for provisional measures 13 September 1993 Order (ICJ Reports, 1993, p. 325), further request admitted

pending

war. Thus, in the period of the PCIJ, there was no case in which provisional measures indicated by the Court had any real effect.

There have been twelve cases in which the ICJ has had occasion to respond to requests for provisional measures. Requests were rejected in five of these twelve cases; in another seven cases provisional measures were ordered. Let me briefly review this past practice.

The 1950s

In the 1950s there were two occasions on which provisional measures were requested. In the Anglo-Iranian Oil Co. case (No. 7), which related to the confiscation of the British-owned company under the 1951 Laws of Iran, the Court indicated some provisional measures in 1951 - in the absence of the respondent state - which would apply on the basis of reciprocal observance. One year later, however, in 1952, the Court found that it lacked jurisdiction to deal with this case, thus depriving those provisional measures offurther legal

545


effect. It is significant that among the cases eventually terminated by the ICJ for lack of jurisdiction (see pp. 548-51 below), the only one in which the Court had indicated provisional measures is this early example. Another case in the 1950s, the lnterhandel case (No. 8), related to a dispute that had arisen with respect to the c1aim by Switzerland to the restitution by the United States of the assets of the [nterhandel Company entered in the Commercial Register of Basle. As the US had declared that it would not take action for the time being to fix a time schedule for the sale of the shares in question, the Court, in 1959, dismissed the request on account of the lack of urgency of the relevant matters.

The 1970s

In the early part of the 1970s, apart from a request in 1973 by Palcistan in the case of Trial of Pakistani Prisoners of War (No. 11) (which lapsed owing to successful negotiations between the applicant and respondent states), the Court received two requests for the indication of provisional measures, both of which were granted. In the Fisheries )11risdiction cases (No. 9A/B), the Court indicated in 1972 some provisional measures to the effect, among others, that Iceland should refrain from taking any measures to enforce the relevant regulations against British and Gem1an vesscls within the unilaterally established 50-mile fishery zone. Iceland did not comply with the Court's Order indicating provisional measures. In the Nuclear Tests case (No. lOA/B), the Court indicated, in 1973, some provisional measures to the effect, in particular, that the French government should avoid (atmospheric) nuclear tests causing the deposit of radioactive fall-out on Australian and New Zealand territories. Since France announced its intention to cease the conduct of such tests, the Court found that, the objective of the applicants having been accomplished, the claims no longer had any object and that the dispute had thus disappeared.

A few years later, in 1976, a request for pwvisional measures was made by Greece in the Aegean Sea Conti11ental Shelf case (No. 12). The Court on this occasion rejected the request to ord r abstention from all exploration activity or any scientific research in the disputed areas, for the reason that the effects of the alleged breach by Turkey would be reparable by appropriate means in the event thatjudgment were rendered in Greece's favour. These three cases of provisional measures in the 1970s were different in nature and context but there was one common element in all three, in that the respondent state had declined to appear in the case at all and the Orders of the Court were made in absentia.

546


The 1980s

Around 1980, the Court indicated provisional measures in two cases of a highly political nature in which the Court's Orders were not complied with by the respective respondent states. In the Tehran Hostages case (No. 13}, the Court stated in 1980, in the absence of the respondent state, Iran, that Iran should immediately ensure the restoration of the premises of the US Embassy to the possession of the US authorities and the immediate release of all persons of US nationality who had been held as hostages in the Embassy and elsewhere. The Court's Order was not, however, o\>served by Iran. In the Nicaragua/US case (No. 15), the Court indicated provisional measures in 1984 which stated, inter alia, that the US should immediately cease ~nd refrain from any action blocking access to or from Nicaraguan ports and the laying of mines, and that the right of Nicaragua to sovereignty and to political independence should be fully respected and should not in any way be jeopardized by any military and paramilitary activities which were prohibited by the principles of international law. In fact, the situation in Nicaragua remained unchanged even after the indication of these provisional measures. In the Burkina Faso/Mali Frontier Dispute case (No. 14), presented to a Chamber by a special agreement of the parties in dispute on boundary issues, the Chamber responded, in 1986, in favour of the requests for provisional measures submitted separately by both states and ordered that no action that might affect the delimitation of boundaries and cease-fire agreements should be taken. The Court's Order is believed in this case ofjoint submission to have been observed by both parties. In the case concerning Border and Transborder Anned Actions between Nicaragua and Honduras (No. 16) a request by Nicaragua, in 1988, for provisional measures was withdrawn by the applicant state for some political reasons only ten days after it was filed in the Registry of the Court.

The 1990s

In three cases around 1990, requests for provisional measures were all rejected for one reason or another. In the Arbitral Award case (No. 17), the request of Guinea-Bissau for provisional measures requiring the parties, Guinea-Bissau and Senegal, to abstain in the disputed areas from any action of any kind during the whole duration of the main proceedings concerning the existence and validity of the 1989 Arbitral Award was rejected in 1990 for the reason that the alleged rights sought to be made the subject of provisional measures were not the subject of the proceedings before the Court on the merits of the

547


case. In the case con eming Passage thro11g, the Great Belt (No. 18), which was brought unilaterally by Finland against Denmark, the Court declined, in 1991, to indicate the provisional mea ures requested by Finland whereby Denmark would have been required to refrain from continuing constmction work on a bridge, so that the right to navigate through the Great Belt would not be infringed by that constmction work during the pendency of the proceedings, as it took the view that pending a decision of the Court on tb merits any negotiation between the parties with a view to achieving direct and friendly settlement was to be welcomed and that the circumstances were not such as to require provisional measures. In the Lockerbie case (No. 19A/B), Libya's request for provisional measures to the effect that the US and the UK should be enjoined from taking any action to compel Libya to surrender the accused individuals to any jurisdiction outside Libya was rejected by the Court in 1992 for the reason that, in accordance with article 103 of the UN Charter, the obligation of the parties to accept and carry out a decision of the Security Council should prevail over their obligations under the Montreal Convention, on which Libya attempted to base its own claim.

After these three successive cases during 199Q-2 in which requests for provisional measures were dismissed, the Court, in a recent case concerning the Application of the Genocide Conventior1, brought in March 1993 by Bosnia-Herzegovina against Yugoslavia (Serbia and Montenegro) (No. 20), responded in April 1993 to a request for the indication of provisional measures by making an Order requiring the respondent state to take all measures to prevent commission of the crime of genocide. No real effect has been observed with respect to ·th • Court's Order. With respect to a further request for provisional measures made by Bosnia and Herzegovina in July 1993, the Court reaffirmed in its Order of September 1993 the provisional measures indicated in its previous Order as mentioned above.

IS THE COURT'S JURISDICTION A PREREQUISITE OF

THE INDICATION OF PROVISIONAL MEASURES?

A request for provisional measures serves to institute proceedings incidental to the main proceedings on the merits. One may therefore be led to wonder whether the jurisdiction of the Court is a prerequisite of the indication of provisional measures. This question did not arise to any particular extent during the period of the PCIJ since, in most of the cases before that Court, no objections concemingjurisdiction were raised by the respondent state, but the present Court has been confronted with this question on many occasions. The issue of a jurisdictional link in this context was first dealt with in the Anglo-

548


Iranian Oil Co. case (No. 7), in which the Court took the position, in 1951, that provisional measures could be indicated unless the Court obviously lacked jurisdiction, stating that 'it cannot be accepted a priori that a claim based on such a complaint falls completely outside the scope of international jurisdiction' .1 In fact the Court found at the later jurisdictional stage, in 1952, that it lacked the requisite jurisdiction and the UK's application was accordingly dismissed.

Probably because of this precedent, the ICJ was inclined to adopt subsequently a somewhat more severe position in this respect, stating that the basis of the Court's jurisdiction would, prima facie, have to be founded. In the Fisheries Jurisdiction cases (No. 9A/B), the Court, finding that the 1971 exchange of letters between the UK and Germany, on the one side, and Iceland, on the other, appeared, prima facie, to afford a possible basis on which the jurisdiction of the Court might be founded, stated, in 1972, that it 'need not, before indicating [provisional measures], finally satisfy itself that it has jurisdiction on the merits of the case, yet it ought not to [indicate provisional measures] if the absence of jurisdiction on the merits is manifest'.2 This approach was adopted by the Court in the Nuclear Tests case (No. lOA/B), in which it was stated, in 1973, that 'the Court need not, before indicating [provisional measures]. finally satisfy itself that it has jurisdiction on the merits of the case, and yet ought not to indicate such measures unless the provisions invoked by the Applicant appeared, prima facie, to afford a basis on which the jurisdiction of the Court might be founded' . 3 It was also adopted in the A egean Sea Continental Shelf case (No. 12) in which the Court observed, in 1974, that it 'is not called upon to decide any question of its jurisdiction to deal with the merits of the case ... [and that] the decision given in these proceedings in no way prejudges any such question or any questions relating to the merits'.4

Since the end of the 1970s, the Court seems to have taken the position that a prima facie basis of jurisdiction is required. In the Tehran Hostages case (No. 13), the Court stated, in 1979, that it 'ought to indicate [provisional measures] only if the provisions invoked by the Applicant appear, prima facie, to afford a basis on which the jurisdiction of the Court might be founded' . s In the Nicaragua/US case (No. 15), the Court, in 1984, employed the same form of words as had previously been used in the N uclear Tests cases, saying that 'it ought not to indicate such measures unless the provisions invoked by the Applicant appear, prima facie, to afford a basis on which th e jurisdiction of

' ICJ Reports, 1951, p. 93. 2 ICJ Reports, 1972, p. 15. 4 ICJ Reports, 1974, p. 13.

3 ICJ Reports, 1973, pp. 101, 137. s ICJ Reports, 1979, p. 13.

549


the Court might be founded'. 6 A practically identical form of words was employed in 1993 in the Application of the Genocide Convention case (No. 20).7 In those three cases, the Court granted the requests for provisional measures made by the applicant states, the US (against Iran), Nicaragua (against the US) and Bosnia-Herzegovina (against Yugoslavia (Serbia and Montenegro)), respectively. In a few other recent cases such as the Guinea Bissau/Senegal Arbitral Award case (No. 17) and the Lockerbie cases (No. 19A/B), in which the requests for provisional measures were dismissed, in 1990 and 1992 respectively, for reasons unrelated to the matter of the Court's jurisdiction, the Court seemed to require that the basis of jurisdiction should be, prima fade, afforded by the relevant provisions.

The statutory purpose of provisional measures is to protect the respective rights of the parties (see pp. 551--4 below). However, once indicated, they will result in constraints being placed upon the respondent state's possibilities of further action and tend therefore to protect the political interest of the applicant state at the expense of that of the respondent state. If provisional measures are granted on a weak basis of jurisdiction, this will lead to an abuse of the right of the applicant state not to have its interest endangered without due authority.8 On the other hand, considering that the institution of provisional measures is almost essential to any judicial process and is required because of the imminent necessity of preventive action, and having regard to its interim nature, one cannot expect a request for such measures to be made only if or when the jurisdiction for proceeding on the merits of the dispute is firmly established.

Much subtlety has been deployed in the reasoning of judges concerning this requirement of prima facie jurisdiction. The matter came to a head in the Nuclear Tests case (No. 10A/B), when the Court was apparently divided among those members who viewed prima facie jurisdiction as manifestly

• ICJ Reports, 1984, p. 179. 7 ICJ Reports, 1993, p. 11. • It should be added that the tenru 'applicant' and 'respondent' states are here used to refer respectively

to the party applying for provisional measures and its opponent, which are not necessarily the respective applicant and respondent in the main proceedings. Indeed, in the case brought by special

agreement between Burkina Faso and Mali, both states were applicants in the main proceedings, as well as both applicants and respondents to their overlapping requests for interim measures. It is noteworthy

that requests for such measures tend to provoke counter-requests (ICJ Reports, 1986, p. 3), hence it

cannot be presumed that only the state taking the initiative of instituting proceedings will feel the need

of interim protection. This appears to be reflected in the Court's power to indicate measures sua sponte. It may further be noted that in the Lockerbie cases (No. 19A/B), Libya was in effect a respondent before

the Security Council when it became an applicant before the Court; in fact, irrespective of its fonnal request for interim measures, its entire application can be construed as such a request directed against the Council.

550


present, those who considered it not manifestly absent, and those who believed (or also believed) that to grant that it existed with sufficient certainty to justify the indication of provisional measures would prejudice the expected discussion at the jurisdiction stage (which was never resolved) of the continuing validity and efficacy of the 1928 General Act cited by the applicants as the basis of jurisdiction. This is not the place to discuss this dilemma further. It may, however, be remarked that the great importance of the political issues at stake in this case undoubtedly weakened the position of those who argue that, since the possession ofjurisdiction is not required by the Statute, it is not a condition which the Court may impose upon itsel£

THE PURPOSE OF PROVISIONAL MEASURES

Preservation of rights exposed to imminent breach which is irreparable

The purpose of provisional measures is to preserve the rights of either party, and it is established in the jurisprudence (most clearly in the Arbitral Award case (No. 17)) that the rights in question are those to be confronted at the merits stage of the case, and which constitute or are directly engaged by the subject of the application. The urgency of the relevant action or inhibition is a prerequisite. The anticipated or actual breach of the rights to be preserved ought to be one ] that could not be erased by the payment of reparation or compensation to be ordered in a later judgment on the merits, and this irreparable prejudice must be imminent. These conditions have been regarded by the Court as the criteria by which it has determined its position in indicating or refusing to indicate provisional measures as requested by the applicant in each case.

In the following cases the requests were dismissed for the lack of these conditions. The request by Switzerland in the Interhandel case (No. 8) was ~ismissed on account of a lack of urgency of the relevant matters, as 'the sale of [the shares in the Swiss company that were possessed by the US government] can only be effected after the termination of a judicial proceeding which is at present pending in [the US]', while the US government was 'not taking action at the present time to fix a time schedule for the sale of such shares'.9 The request by Greece for provisional measures in the Aegean Sea Continental Shelf case (No. 12) was rejected by the Court for the reason that the alleged breach by Turkey of the exclusivity of the right claimed by Greece to acquire information concerning the natural resources of areas of continental shelf was

• ICJ Reports, 1957, p. 112.

551


one that might be capable of reparation by appropriate means. In the Passage through the Great Belt case (No. 18), the Court dismissed the request of Finland for the reason that the right of Finland to navigate through the Great Belt would not be infringed by construction work to be undertaken by Denmark, which might not be completed during the pendency of the proceedings.

In contrast with these examples of dismissal of the request, the Coun indicated provisional measures in the following cases which appeared to it to satisfy the required conditions as mentioned above. ln the Anglo-Irat1ian Oil Co. case (No. 7), the Court accepted the contention of the UK that the confiscation of the company by the Iranian government could not be indemnified by the payment of reparation or compensation which might be indicated in the judgment to be delivered in the merits phase. The Court held, in the Fisheries Jurisdiction cases (No. 9A/B), that the immediate implementation by Iceland of its regulations concerning its 50-mile fishing jurisdiction would affect the possibility of their full restoration were a judgment eventually to be rendered in favour of the UK and Germany. In the N~1clcar Tests case (No. 1 OA/B), the Court also found that the possibility could not be excluded that damage to Australia and New Zealand might be caused by the deposit on Australian and New Zealand territories of radioactive fallout resulting from atmospheric tests and be irreparable, and indicated provisional measures to the effect, inter alia, that, pending judgment, France should avoid such tests.

Prevention of aggravation and extension of disputes

The question may be raised as to whether a request for provisional measures can be made even in order to avoid the aggravation and extension of a dispute. In the Aegeatl Sea Continental Shelf case (No. 12) , while being requested to indicate provisional measures to the effect that the governments of both Greece and Turkey should 'refrain from taking further military measures or

actions which may endanger their peaceful relations', the Court found, in 1976, that there was no need for it 'to decide the question of whether Article 41 of the Statute confers upon it the power to indicate provisional measures for the sole purpose of preventing th aggravation or extension of a dispute' .10

It seems, however, that the Court has become inclined to interpret article 41 of the Statute much more widely so as to cover cases in which the prevention of an aggravation or extension of the dispute is required or even

'" ICJ Reports, 1976, p. 13.

552

--


where the status quo needs to be maintained, although it has not indicated provisional measures solely to that end. In fact, whenever provisional measures have been indicated, the Court has not failed to mention this element as one

of the measures specified in the operative parts of each of the Orders. In the Anglo-Iranian Oil Co. case (No. 7), the Fisheries jurisdiction cases (No. 9A/B) and the Nuclear Tests cases (No. lOA/B), the Court stated, in 1951, 1972 and 1973 respectively, that the parties in dispute should each 'ensure that no action of any kind is taken which might aggravate or extend the dispute submitted to the Court'. 11 In the Tehran Hostages case (No. 13), the Court stated, in 1979, that both the US and Iran 'should ensure that no action is taken which may aggravate the tension between the two countries or render the existing dispute more difficult of solution' .12 Likewise, the Court stated in April 1993 in the Application of the Genocide Convention case (No. 20) that both governments 'should ensure that no action is taken which may aggravate or extend the existing dispute over the prevention or punishment of the crime of genocide, or render it more difficult of solution'.13

Requests for interim judgments

I must point out that the institution of provisional measures has greatly changed in nature over the past twenty years. Originally provisional measures were to be indicated as incidental proceedings in cases that themselves might not necessarily have to be dealt with as a matter of great urgency, in order to preserve the rights of parties exposed to an imminent breach which would not be reparable by the later judgment on the merits.

In fact, however, in recent cases, the actual matters to be considered during the merits phase have been made the object of the requested provisional measures. If we look at certain cases brought in the 1980s which were of a highly political nature, the applicant states appear to have aimed at obtaining interim judgments that would have affirmed their own rights and preshaped the main case. In the Tehran Hostages case (No. 13) the restoration of the premises of the US Embassy and the release of the American diplomats -the subject of the request for provisional measures- corresponded precisely to the object of the application made by the applicant state, the US. Also, in the Nicaragua/US case (No. 15), what Nicaragua asked the Court to indicate as provisional measures, i.e., the suspension of the blockade and cessation of

11 ICJ Reports, 1951, p. 93; ICJ Reports, 1973, pp. 106, 142; ICJ Report<, 1974, pp. 17, 31. 12 ICJ Reports, 1979, p. 21. 13 ICJ Reports, 1993, p. 25 .

553


military or paramilitary activities interfering with the sovereignty or political independence of Nicaragua, was the very object of the application instituting proceedings before the Court.

The requests for provisional measures in those cases appear to have tried to pre-empt the Court's judgment under some extraordinary circumstances, and the Court's Orders appear to have been close to a decision to pre-empt

the eventual judgment on the merits. The Court, without waiting for the proceedings on the merits, appears to have taken the position that the case blatantly involved violations of international law on the part of the defendant state. As a member of the Court, I should refrain from making any comment on the provisional measures indicated in 1993 in the Application of the Genocide Convention case (No. 20). I would simply like to say that what was at issue in that case might not have been the preservation of the rights of Bosnia-Herzegovina under the Genocide Convention pending the judgment to be delivered, but that the Court had to dispose of the case unilaterally brought by Bosnia-Herzegovina as a matter of urgency, given that it concerned purported violations of that Convention.

There has been a recent trend for the Court to be tempted to deliver an interim judgment under the name of provisional measures and for such measures not to be observed in any effective manner. If the tendency is to be for the Court to arrive at a quick decision on matters relating to the merits, while reserving for the future other much more judicious considerations on the question of jurisdiction as well as the merits and avoiding any measure of responsibility in the event of a reverse judgment in the future, then the whole matter requires very careful consideration. If the dispute in question really requires an urgent solution, then that solution had better be found not via an incidental proceeding but by an expeditious deliberation on the merits. It is my view that proceedings on provisional measures must essentially constitute a type of proceeding incidental to, not coincidental with, the proceedings on the merits of such contentious disputes as fall within the jurisdiction of the Court. I personally have some doubt about whether the recent requests for , provisional measures can really be regarded as falling within the scope of the institution as originally planned at the outset of the PCIJ and reintroduced in the Statute of the present Court.

THE EFFECTS OF PROVISIONAL MEASURES

Whether the provisional measures indicated by the Court are binding on the parties in dispute has been argued ever since the tentative word 'indicate' was introduced into the Statute of the PCIJ. The affirmative position has been

554

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argued from the standpoint that provisional measures are given in the form of an 'Order' of the Court. Conversely, it has been asserted that such measures are simply 'indicated' by the Court,14 i.e.; that there is no iron fist inside the velvet glove. The Court has never taken an overt position in this respect but, as a matter of principle, the Court's 'Order' ought to be properly observed. In this connection, I should mention that notice of measures has to be given to the Security Council (Statute, Article 41 (2)).

It seems to me, however, that this question may be argued from a different angle. If the later judgment on the merits is rendered in favour of the applicant state, the respondent state may be made responsible for any action taken in defiance of the provisional measures. On the other hand, the question arises whether an applicant state, which has been granted provisional measures but subsequently loses the proceedings on jurisdiction so that the application is dismissed (as in the Anglo-Iranian Oil Co . case (No. 7)) or loses the case on the merits (for which there is no precedent), should be considered liable for such losses as the respondent state or states may have borne through having complied with the provisional measures. It may be interesting as a hypothetical exercise to consider these problems on the assumption that, in the Passage through the Great Belt case (No. 18), the Court had ordered the suspension of the construction of the bridge in response to the request made by Finland.

In fact there has not been any precedent in which the Court gave a judgment against an applicant state in favour of the respondent state after having made an Order indicating provisional measures at the request of that same applicant state. The fact is that the provisional measures indicated by the Court in the past have usually not been implemented by the respondent state. Apart from the Nuclear Tests cases (No. 10A/B) which became moot, in the Anglo-Iranian Oil Co. case (No. 7), the Fisheries Jurisdiction cases (No. 9A/B) and the Tehran Hostages case (No. 13), the respondents did not participate in the proceedings and did not observe the provisional measures indicated by the Court. In the Nicaragua/US case (No. 15) in which the respondent state was represented in the proceedings for provisional measures, it did not seem to comply fully with the Court's Order, although there was no open act of defiance on its part. In the Application cif the Genocide Convention case (No. 20), the respondent state was represented in the proceedings but is not noted to have made any explicit attempt to comply with the Court's Order indicating the provisional measures, though it must be realized that to have done so

14 See Mr Anzilotti's observation at the 34th meeting ofPCIJ (10 February 1931): PCIJ, Series D , second addendum to No. 2, pp. 182-3.

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would have been inconsistent with its claim of lack of responsibility for the acts complained of.

The issues in each case in which the request was granted were not actually brought to a final settlement - even by the judgments on the merits which followed the Court's indication of provisional measures. The dispute in the Fishen"es Jurisdiction case (No. 9A/B) disappeared with the emergence of the 200-mile fisheries zone as a new law of the sea. The Nuclear Tests case ceased to exist as France announced that it would not be continuing with nuclear testing. The Tehran Hostages case (No. 20) came to an end (being wit\1drawn) only through some means other than the judicial settlement of the Court, in other words through the mediation of Algeria (involving inter alia the establishment of the Iran-US Claims Tribunal). I do not need to repeat the outcome of the Court's Order in the Application of the Genodde Convention case referred to in the above paragraph. It is not going too far to state that the provisional measures indicated by the Court have had hardly any practical effect in most cases of a highly charged political nature.

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Documents

Annex LA-6 · provisional measures - which is deemed to be an almost essential instrument in the panoply of any judicial process - is intended to preserve, pending the final decision,